My take on The Orphan Works Act of 2008

Wednesday, May 14, 2008

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If you're a pro photographer and haven't been hiding in a cave, you've
probably heard about the Orphan Works Act (OWA). Also known as H.R.5889
(the House version of the bill), and S.2913 (the Senate version). Both
versions are currently in draft stages, and are similar enough to discuss
as a single document.

Even if you do live in a cave, you surely must have heard the
screams from protesters about the bill echo throughout your cavernous
walls. In fact, a google search yields more web pages advocating protests
against the bill than actual content on the bill itself. These
perspectives run the gamut from utter hysteria to that of a kinder,
gentler kind of hysteria.

An example of the total hysteria is Mark Simon's blog posting, which
is coupled with loads of misinformation
here. This is the piece that's been passed around to
photographers and other artists everywhere, by email, internet forums,
faxes, and word-of-mouth. It and other emails like it, are responsible
for the dispensing of more untruths and rumors that have only lead to
confuse people. Yet, as our culture dictates, if you got it in email,
it must be true. (Hint to dumb people: whenever you read something that
is peppered with lots of exclamation points, you are reading propaganda,
and are also being lied to.)

A far more sound, balanced, and informed retort to Simon's piece
can be found on
Meredith Patterson's blog. Unfortunately, Meredith's post doesn't
really make its rounds in photo circles.

In short, just about every objection I've read about the OWA has been rife
with unsubstantiated statements about how photographers will lose their
copyright protections, or that people will be able to use their images for
free. Yet, at no time does anyone cite text from the bill that even hints
at this possibility.

And though Meredeth does a good job at dispensing with the most common
misconceptions about the OWA, it doesn't talk about the stuff that
really matters to artists. So that's what I'd like to do.

To begin, I'd like to do what no one else that argues about this bill
typically does: actually provide a link to the bill itself so that those
playing the home game can read along. I'll be citing text from it to
illustrate the points that matter, so this reference point might help:

The bill, which is surprisingly short and easy enough to read (if you
don't mind long lists of comma-separated items), is broken down into
several sections. Only one of which has real substance to the "uses and
limitations" that is the source of everyone's consternation. I'll get to
that very soon. But first the summary: the OWA intends to provide certain
protections for those who use copyrighted works in certain ways, so long
as the original author of the work cannot be found. Hence, the work is an
"orphan." If you need more background than that, then you should do some
independent research. A fantastic summary of what the problem is that is
intended to be solved can be found here: http://www.copyright.gov/orphan

Of all the objections you can find on the internet, if you exclude the
unfounded and ridiculous (which is virtually everything), what's really
left to discuss is the notion that publishers can potentially use a
copyrighted work (like a photograph) "for free", so long as they claim
that they couldn't find who the copyright holder is. This has created the
fear that major publishers and broadcast television stations will crawl
the internet for photos, and just use them carte blanche, and never paying
license fees.

This is the part of the code alludes to this very point:

Section 2(c)(1)(B) An order requiring the
infringer to pay ... compensation for the use of the infringed work may
not be made ... if the infringer is a nonprofit educational institution,
library, or archives, or a public broadcasting entity...

In short, the protesters are worried that non-profits, libraries and TV
stations have free reign to steal photos at will. Then the fear mongers
take it one step further: that a user of the photo that isn't one
of those above entities, may try to use legal maneuvering or other forms
of masquerade as one, so as to ultimately steal images for commercial use
(a use which normally commands an even higher license fee that the
photographer will have missed out on).

Fortunately, it's not so simple. And this is why it's important to read
the text of the bill. As mentioned above, the meat of the bill that
applies here is Section 2, which has three headings: (a):
Definitions, (b): Conditions for Eligibility, and (c),
Limitations on Remedies. The quoted excerpt above is from section
(c), where it lists the entities that do not have to pay compensation if
they use a work that does have a copyright holder who comes
forward. But, the mistake people are making is assuming these entities are
automatically exempt. No, they're not. First, they must become
eligible for exemption by satisfying part (b), which states that
the user must have done a "Qualifying Search" to discover who the
copyright holder is. And this is a rather arduous process, as you can read
for yourself:

(A) REQUIREMENTS FOR QUALIFYING SEARCHES-

(i) IN GENERAL- For purposes of paragraph (1)(A)(i)(I), a search is
qualifying if the infringer undertakes a diligent effort to locate the
owner of the infringed copyright.

(ii) DETERMINATION OF DILIGENT EFFORT- In determining whether a search is
diligent under this subparagraph, a court shall consider whether--

(I) the actions taken in performing that
search are reasonable and appropriate under the facts relevant to that
search, including whether the infringer took actions based on facts
uncovered by the search itself;

(II) the infringer employed the applicable best practices maintained by
the Register of Copyrights under subparagraph (B); and

(III) the infringer performed the search before using the work and at a
time that was reasonably proximate to the commencement of the
infringement.

(iii) LACK OF IDENTIFYING INFORMATION- The fact that a particular copy or
phonorecord lacks identifying information pertaining to the owner of the
infringed copyright is not sufficient to meet the conditions under
paragraph (1)(A)(i)(I).

In other words, before anyone is eligible for limitations on
damages, they must have done a search that is compliant with the
methodologies listed above, and documented in such a way so as to
prove to a court that the user has complied with the Act. This makes the
task of "frivolously stealing an image and hiding behind the OWA" less
likely of a problem. One would have to carefully weigh the cost of
properly documenting a legally defensible "diligent search" against the
cost of just licensing the photo in the first place. (Actually, there's
more to it than this, and I'll come back to it soon.)

Of course, this also assumes that the photographer is known. And that
might not be the case. Hence, the second concern is that because photos
are passed around the internet like wind blowing sand in the desert, it's
nearly impossible to really know where any given picture might have
originated. Even honest publishers don't know whom to go to. So, could
they also get away with using the photo for free? Perhaps, but they
also have to assume risk: that someone would still come forward and file
an infringement claim. Few want to take this risk, as I'll come back to
later.

But, it's the requirement to do a "diligent search" that brings me to what
I believe to be the best part of the OWA:Section 3: DATABASE OF
PICTORIAL, GRAPHIC, AND SCULPTURAL WORKS This section states, "The
Register of Copyrights shall undertake a certification process for the
establishment of an electronic database to facilitate the search for
pictorial, graphic, and sculptural works that are subject to copyright
protection." Furthermore, the Copyright Office "shall make available to
the public through the Internet a list of all electronic databases that
are certified."

Read that closely: a certification process for the establishment of a
database. This means that it isn't just the copyright office that has
a database, but that many companies could build such a solution and
apply for certification. Each would then offer services to the general
public for finding copyright holders. For example, a service may provide
the user with a form to upload a photo to the site, much like the way you
upload photos to a photo-sharing site, and the user gets back a report
detailing who the registered copyright owner of that photo is.

Sound like magic? Sound too good to be true? Sound familiar? I publicly
proposed such an idea in a blog I wrote on January 21, 2008, in this blog entry, after I had privately proposed it to
the Copyright Office the prior year. I make no claims that it
was my idea that made its way into the bill. I am only saying that,
because of its similarity to my proposal, I am familiar with the ideas and
intents that it provides, and feel it does everyone a great deal of good.

My intent at the time had nothing to do with OWA or anything like it, but
rather, to provide an infrastructure to verify who owns a photo for a
variety of reasons. At the time, the topic du jour was the Creative
Commons dilemma. Here, any anonymous person could declare any image to be
"free" by placing it under a Creative Commons License, but they can do so
with no registration, verification or authentication of any kind. I argued
that this aspect of the CC had created a breeding ground (not to mention
incentive) on both sides (photographers and licensees alike) to
game the system for their own profit. To avoid this problem, Licensees
need a way of verifying that a photo hasn't already been copyrighted (at
least). My idea of the certification process happened to address that
problem, but it can also easily address the OWA as well. (As you can see,
it's part of it.).

One of the things I pointed out in my proposal, and which applies directly
to why it's so great to see it in the OWA, is that the entire idea can be
turned on like a light switch (well, in government time, that is). This
could be done nearly the same time the OWA were to be enacted because
because both the database, and the image matching/search technology
already exist. Several firms, like picscout and IdeeInc, use image
recognition algorithms right now: they start with a sample image,
determine it's "fingerprint" (that's the algorithm), and then find where
else on the internet where the photo exists. They do this by comparing
this fingerprint against all the other fingerprints they've collected from
the web pages their robots have been crawling for years. If the crawl is
far and deep enough into the web, more matches are found. The clients of
these companies are large stock agencies who pay to find infringers of
their works, and then demand payments or damages.

If the OWA passes, each of these companies would just process the
copyright "library" of images (just like it did when it crawled the web),
fingerprint them, and then do instant comparison analysis against an input
image by any given user. The only thing keeping that from happening today
is access to the copyright office's database of images.

Other players in this could be Google, Yahoo and other search engines,
because they already do all this as well. In fact, faster and more
thoroughly, for obvious reasons. They don't make it available to the
public due to certain business and legal concerns that are beyond the
scope of this article, but the OWA would alleviate these legal concerns.
The doors would open up to a truly public system nearly the same day the
certification process would become enabled.

Of course, the one thing this relies on is photographers actually
registering their works with the Copyright Office. Not doing so has always
been dim-witted, but after the OWA is enacted, there's all the incentive
to do so. And now that you can register online, the process is even easier
than that one-page form you used to have to fill out.

What's the net effect of all this on the photo licensing industry? As I
wrote in my January 2008 blog, Infringements themselves could become a
thing of the past. While people could still "steal" images and publish
them without the photographer's consent, they'd be taking a huge risk in
doing so because if the photographer caught them (a highly likely
event, given that media of all sorts is being digitized and indexed,
therefore "findable"), the case in court is pretty cut and dried: "Your
honor, all one needs to do is simply input the photo in the copyright
office database and my name comes right up." How could a judge not
find the infringer guilty? Better still, it could determine that the
search is so easy, that not doing so would imply a willful
infringement. By statute, "willful infringements" increase the ceiling of
the damages the judge may award from $30,000 per infringement to $150,000.
With that kind of risk and a sure-fire losing case in court, the number of
infringements would drop considerably.

Another unexpected benefit of the copyright database: it might even
generate sales. If an honest company finds your photo on a website
somewhere, or it's been passed around in email, and they want to use it,
just use the database to find you and license the image legitimately.
Today, they'd never know it was you.

Here's another benefit: it would be harder for someone to claim someone
else's images as their own--a phenomenon that's already happened
everywhere from major stock photo agencies to social-networking sites like
Flickr. So long as the photo's been registered with the copyright office,
a simple search will usually yield the correct owner. Though this is
obviously not bullet-proof, it's far superior than what's available today.

True, there will always be "orphaned works" out there, much of it not on
the internet. But the provisions of the OWA's "diligent search"
requirements are onerous enough, that one doesn't want to mess with
offline content frivolously as well. After all, they may not be online,
but they may still have been registered with the copyright office, and if
the promise of the online database holds true, these offline items may end
up being found as well.

Once again, this works best when works have been registered. But, what
about those that haven't been? Does the OWA have sufficient teeth to
address everyday people and their works, whether images or songs, or
what-have-you? If the work is not registered, it won't turn up in the
database search, thereby making it much hard to legitimately find the
copyright holder. There are those who say that this alone makes stealing
easy for publishers: because it's easy to claim that there are tens of
billions of photos online, and finding the owner is like finding a needle
in a haystack. But the court also knows that the OWA isn't there to
protect people from litigation just because they didn't find that
needle. The court is going to consider whether the publisher was
looking in a haystack where every straw probably has a known, current,
copyright holder in an environment that's inherently crowded with such.
Judges look for "intent" by the parties, and it isn't going to be hard to
see what's going on when such cases come before them.

Oh, and let's remember the pragmatic reality of how these things go in
real life. If a company were to be dumb enough to try to hide behind the
OWA, and they get sued by a copyright holder for infringement, the
company's lawyer is going to do what every lawyer does: avoid the
litigation by trying to reach a settlement. Though it's sad when innocent
companies get sued on baseless claims, they still know it's always better
to settle than to go to court. And those are the innocent companies. I'll
bet you Bill Gates' next paycheck that a guilty party is even more
eager to settle than risk going to court and losing. That would not only
make them ineligible for safe harbor (even if they are a nonprofit,
library or PBS station), but that the existing statutory damages would
apply. This settlement is virtually assured to be a much higher price than
what they would have paid had they licensed it legitimately. (A good
lawyer will assure that!)

In the end, photographers are really not losing anything at all with the
OWA, and I see no real concern for risk in any of the areas that has been
getting all the hoopla. Granted, it's not a perfect bill, and I don't
doubt there is probably language that needs cleaning up. Nor am I
disputing the (currently unknown) possibility that the OWA might
exacerbate infringements. But that doesn't mean they will necessarily be
"successful" infringements. And, even if there is an increase, it would be
a short-term anomaly, quick to subside once people become aware that the
OWA doesn't protect them as they thought they would.

In my mind, the true golden nugget is Section 3 of the bill, where the
public can access databases of registered works. This will have the
greatest effect on providing disincentive for infringers of all types,
even those that have nothing to do with the OWA.